Whether a contractual 'notwithstanding' clause precludes the applicability of competing contractual language

QUESTIONS PRESENTED FOR REVIEW Contracting parties use a “notwithstanding any language to the contrary” clause in their contracts to preclude the applicability of competing contractual language. It is universally established principle of American jurisprudence that such clauses trump all other contractual language regardless of how arguable or compelling the competing contractual claim. Through the expedient mechanism of issuing an unpublished decision, the Ninth Circuit, in manifest contravention of this Court’s precedent, found that a “notwithstanding” clause in a collective bargaining agreement was “tethered” to other contractual language such that competing contractual claims were applicable and could be administered by the union. 1. Whether Cisneros v. Alpine Ridge Group, 508 U.S. 10 (1993), precludes the Ninth Circuit from finding that a contractual “notwithstanding” clause — which provides that a collective bargaining agreement (CBA) shall have no applicability “whatsoever” to a new store —is “tethered” to other CBA terms such that those contractual provisions are arguably enforceable. 2. Whether the Ninth Circuit’s Local Rule, that results in designating more than 90% of its decisions as having “no precedential” value, is violative of Article III and/or the Due Process Clause and/or the Equal Protection Clause. 3. Whether the Ninth Circuit applies its Local Rule, specifying which decisions shall be published, in an ii QUESTIONS PRESENTED FOR REVIEW — Continued arbitrary and capricious manner such that its application violates the Due Process and/or Equal Protection Clauses. 4. Whether the Ninth Circuit violated its Local Rule requiring the publication of decisions meeting the Circuit’s delineated criteria when it rejected Nob Hill’s publication request. iii PARTIES TO THIS PROCEEDING In addition to the parties named in the caption, the United Food and Commercial Workers Union, Local 5, a labor organization, was the charging party in the NLRB proceeding and an Intervenor in the Ninth Circuit case.